NORWAY Law and Practice Contributed by: Thomas Talén, Øyvind Clausen Bade, Marte Dahl and Marianne Viset, Ro Sommernes Advokatfirma AS
2.2 Communication to Authorities Under Norwegian law, an employer who receives a notice of concern or handles a case involving a notice of concern is not obliged to inform the public authori - ties. However, it would be best practice to notify, for example, the Financial Supervisory Authority of Nor - way if an employer receives a notice of concern and discovers that an employee has violated regulations administered by that Authority. 2.3 Confidentiality Agreements and NDAs Under Norwegian law, there is freedom of contract, and it is therefore possible for employers and employ - ees to enter into confidentiality agreements (NDAs). This freedom is, however, not unrestricted in Norway, and in any event such agreements cannot be used to restrict or remove the Reporter’s statutory rights under the WEA. For example, agreements or instruc - tions that limit the statutory right to send notices of concern are invalid. Whether or not an NDA has been entered into, the employer must adhere to the principle of confiden - tiality. This means that the identity of those involved in a case involving a notice of concern, including the Reporter, the Respondent and others who provide information, must only be disclosed on a need-to- know basis. Investigations and reports should be handled without revealing the identity of the Reporter or other involved parties, as far as possible, to more people than those who have a need for or right to such knowledge. 2.4 Preliminary Investigation and Scope- Setting Norwegian law requires the employer to investigate the notice of concern within a reasonable time. There is no statutory regulation as to whether the employer must or should initiate a preliminary investigation, but legal theory supports the view that a preliminary inves - tigation is recommended. The purpose of a prelimi - nary investigation is to determine which investigations will be necessary to ensure that the employer’s legal requirements are met. The employer should refer to its own whistle-blow - ing procedures and ensure that these are followed, while also ensuring that both the Reporter and the
notice against the rules on freedom of expression and the duty of loyalty in employment relationships. The employer must always, even in cases outside the scope of the whistle-blowing provisions of the WEA, act objectively and ensure a fully adequate working environment. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent The first step an employer should take when receiving a notice of concern is to confirm to the Reporter that the notice has been received. The Reporter is not enti - tled to notification regarding whether an internal HR investigation will be initiated. However, it is advisable (based on legal theory) that the Reporter is informed of the procedural steps the employer will undertake in handling the information provided, including what the Reporter may reasonably expect throughout the pro - cess. Such information will be helpful for the Reporter, particularly as taking the initiative to require an inves - tigation may be challenging for an employee. It is of importance to note that there is no regulation regard - ing such information requirements. It is essential that the person who is the subject of an allegation triggering an investigation (the “Respond - ent”) is given an opportunity to respond to the notice of concern raised through the whistle-blowing pro - cess. Whilst this procedural safeguard is not expressly codified in the legal framework, the requirement to observe the principle of contradiction (the opportunity to respond to allegations or claims before a decision is made) is firmly established in legal doctrine and in guidance issued by the Norwegian Labour Inspection Authority concerning the proper handling of notices of concern. Upon receipt of a notice of concern, the employer is obliged to ensure that the matter is adequately examined within a reasonable timeframe, and it is standard practice for the Respondent to be notified of the notice of concern by the employer and be given a fair opportunity to present their version of events. This approach reflects both the employer’s duty to conduct a fair and thorough investigation and the Respondent’s fundamental right to procedural fair - ness.
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